Wehbe & Anor v Giotopoulos

1. [1]

   The substantive proceedings were commenced by George Paul Wehbe and Simon Charbel Wehbe on 27 August 2021. They seek probate in solemn form of a handwritten Will dated 8 July 2020 of their mother, Wadad Wehbe (the deceased). Without prejudgment, I shall refer to the document as “the 2020 Will”.

2. [2]

   The Defendant named in the proceedings is Marcha Giotopoulos, a daughter of the deceased and a sibling of the Plaintiffs. She filed a Defence on 7 September 2021 and a Cross Claim on 15 October 2021 and an amended Defence and amended Cross Claim on 22 June 2022.

3. [3]

   In the amended Cross Claim, the Defendant asserts that the 2020 Will is not a valid Will and that the deceased died intestate. She seeks a grant of letters of administration to an independent administrator.

4. [4]

   These reasons, however, do not deal with the substantive proceedings. They deal with a notice of motion, filed on 20 October 2022, by the Plaintiffs, in which they seek leave to issue subpoenas for the production of documents. Leave is required as they are not, currently, represented by a solicitor in the proceedings.

5. [5]

   By the 2020 Will, which appears to have been duly executed, the Plaintiffs were appointed the executors of the deceased’s estate and after “my special bequests”, of which there were none, the rest and residue of the estate was left to the Plaintiffs and their brother, Bashir Wehbe.

6. [6]

   It appears to be not in dispute, that if the 2020 Will is not a valid Will, the deceased died intestate and that, under the operation of the rules of intestacy, the persons who are entitled to share the deceased’s estate, will be her five children. (The fourth and fifth children of the deceased, Mary Naim, and Bashir Wehbe, so far, have not played any role in the proceedings.)

7. [7]

   The matter has been in the Succession List on numerous occasions, the most recent of which was on 7 November 2022, the date on which a notice of motion, filed by the Plaintiffs on 20 October 2022, was heard. I shall return to the notice of motion shortly.

8. [8]

   Since about July 2022, the Plaintiffs have, or one of them has, appeared before the Court without legal representation. On each of those appearances, the Court has suggested that the Plaintiffs should obtain legal assistance and that they should appear in the proceedings by a legal practitioner. The basis of the suggestion, on each occasion, has been without criticism of one, or both, of the Plaintiffs, neither of whom is a legal practitioner and both of whom have been courteous and have attempted to observe the Court’s conventions. Furthermore, they have observed a degree of restraint, decorum, and respect, whilst in Court. The suggestion has been made simply because it seems clear that neither appears to understand the nature of the claims being made, what must be established and by whom, and the legal principles that will apply in the determination of the substantive proceedings.

9. [9]

   In fairness to the Plaintiffs, there have been a number of allegations made by the Defendant, which are no longer pressed. By way of one example, in November 2021, it was necessary to have a single expert appointed in order to forensically examine the 2020 Will. Following the receipt of the expert’s report, the Defendant seems to accept that the signature on the 2020 Will is that of the deceased. The Defence and Cross Claim have also been amended. This has caused the Plaintiffs to express some frustration at the conduct of the Defendant and her legal representatives.

10. [10]

    At the hearing of the notice of motion on 7 November 2022, the Plaintiffs maintained that the evidence upon which they would seek to rely had been filed and served many months ago and that the hearing of the substantive claim has been as a result of the conduct of the Defendant and her legal representatives. The statement is not entirely accurate, as it appears from the Court’s record of proceedings, that on 26 July 2022, it was necessary for the Court to make a direction extending the time for the Plaintiffs to file and serve evidence and the Defence to the Cross Claim to 16 August 2022.

11. [11]

    Prior to the commencement of the hearing of the notice of motion, the Court asked the Plaintiffs whether they wished to retain a legal representative to appear on their behalf to argue the notice of motion. They were informed that if they wished to do so, the Court would consider an adjournment for that purpose. Both said that they wished the notice of motion to be heard, and determined, and that they did not wish to obtain any legal assistance: Tcpt, 7 November 2022, p 7(3-11).

The substantive proceedings

1. [12]

   In order to provide the context in which the notice of motion was filed and served, it is necessary to refer, in more detail, to the relief sought in the Statement of Claim and in the nature of the amended Defence. (It is unnecessary to refer to the Cross Claim which seeks the grant of administration, on intestacy, to the independent administrator.)

2. [13]

   In the Statement of Claim, the Plaintiffs seek a grant of Probate, in solemn form, to them, and an order that the caveat filed on 8 July 2021 by the Defendant cease to be in force. (The caveat has expired through effluxion of time, but the matter has proceeded on the pleadings.)

3. [14]

   In the amended Defence, the Defendant asserts:

4. [15]

   There is a dispute about most of the facts asserted by the particulars, but as would be obvious, the allegations made have not yet been tested.

5. [16]

   It is necessary, also, to refer to part of the Reply filed by the Plaintiffs on 15 August 2022. It states:

6. [17]

   It is likely that many of the matters asserted, whilst of significance to the Plaintiffs, will not be relevant to the determination of the questions which the Court will be required to determine in the substantive proceedings.

The notice of motion

1. [18]

   On 5 September 2022, the Plaintiffs informed the Court of a desire to issue subpoenas to produce documents to three different third parties. Because Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.3(1) provides that a subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings, the Court ordered the Plaintiffs to provide a draft of the subpoenas sought to be issued (including the contents of the documents sought) to the Defendant’s legal representative by 4:00 p.m. on 19 September 2022 and for the legal representative to inform the Plaintiffs whether they would oppose the grant of leave to issue the subpoenas by 26 September 2022.

2. [19]

   On 4 October 2022, the Court was informed that the Defendant opposed the grant of leave to issue all of the subpoenas sought to be issued by the Plaintiffs. The Court, therefore, directed the Plaintiffs to serve any notice of motion and affidavits in support thereof by 4:00 p.m. on 25 October 2022 and the matter was adjourned until 7 November 2022.

3. [20]

   The Plaintiffs complied with this direction, by filing the notice of motion and an affidavit from George Wehbe, on 20 October 2022. No objection was taken to any part of either affidavit, and neither deponent was cross-examined at the hearing of the notice of motion.

4. [21]

   In the notice of motion, the Plaintiffs sought the following relief:

5. [22]

   In the affidavit in support sworn by the first Plaintiff, George, he states (at [5]):

6. [23]

   He also made allegations of “pre-meditated collusion” and “corruption” between the Defendant and her solicitor. He then went on to state (at [15]):

7. [24]

   Finally, the first Plaintiff stated that (at [18]):

8. [25]

   There was no affidavit evidence of the second Plaintiff, Simon Wehbe, read on the notice of motion (although he was present at the hearing and did make some submissions).

9. [26]

   The Defendant relied on the affidavit of David Shad sworn 25 October 2022. That affidavit stated:

10. [27]

    The contents of the subpoenas, which, at the hearing of the notice of motion, I identified as the first, second and third subpoena, respectively, during the hearing of the notice of motion, were:

    1. (1)

       Subpoena to Elders NSW State Head Office (the first subpoena), which relevantly sought:

    2. (2)

       Subpoena to Shad Legal Services – Trading as Shad Partners/Solicitors and Conveyancers (the second subpoena), which relevantly sought:

    3. (3)

       Subpoena to NSW Commissioner of Police (the third subpoena), which relevantly sought:

11. [28]

    There was no evidence about how many documents would be required to be produced, but it seems likely that there could be hundreds of documents that would be required to be produced.

The Submissions

1. [29]

   Without intending any disrespect to either of the Plaintiffs, the oral submissions of each of them were difficult to follow. To the extent that those submissions can be understood, or interpreted, they appeared to reflect no more than a significant criticism of the conduct of the Defendant and her solicitors, particularly, after the commencement of the proceedings.

2. [30]

   When one reads the Reply, one can see that the Plaintiffs appear to be fixated on what occurred after the death of the deceased rather than upon the circumstances surrounding the making and execution of the 2020 Will.

3. [31]

   That this is not too harsh an assessment of their submissions, can be observed with reference to the third paragraph of the notice of motion referred to above. Furthermore, none of the submissions identified how the documents, if produced, would assist them, or the Court, in determining whether the 2020 Will is a valid Will.

4. [32]

   At the hearing, the first Plaintiff’s primary submission with respect to the first subpoena appears to be that the documents, if produced, would demonstrate a conflict of interest between the Defendant and her solicitor. Even if such an allegation could be established, how that allegation is relevant to the proceedings was not made clear.

5. [33]

   In relation to the second subpoena, the first Plaintiff, again, submitted it would demonstrate a conflict of interest between the Defendant and her solicitor. He also submitted that it “goes to the reason why, your Honour, a family provision claim hasn’t been filed. I find that unusual for a firstborn child”: Tcpt, 7 November 2022, p 15(1-9).

6. [34]

   In relation to the third subpoena, the first Plaintiff submitted that it would show the malicious intent of the Defendant and the police, drawing “parallels and timing between the caveat and the first phone call to police”: Tcpt, 2 November 2022, p 17(5-7). He also submitted that the third subpoena would go to the credibility, conduct and character of the Defendant and her legal team, who he alleges “have made an abundance of assassinations against us”: Tcpt, 2 November 2022, p 18(3-10).

7. [35]

   The second Plaintiff’s submissions were brief. He submitted that the first subpoena was necessary to “further propound our evidence to show the suspicious circumstances to which the caveat was placed on the probate”. He further submitted that “the caveat was placed one year to the date on which the will was signed. We believe just on the dates alone that is suspicious”: Tcpt, 7 November 2022, p 11(45)-12(12).

8. [36]

   He submitted that the fact the Defendant has amended her pleadings more than once, and that, alone, has caused the Plaintiffs’ suspicions to be aroused: Tcpt, 7 November 2022, p 13(41-46).

9. [37]

   He made no submissions in respect of the second subpoena: Tcpt, 7 November 2022, p 15(48-50).

10. [38]

    In respect of the third subpoena, the second Plaintiff submitted that it would show “the timing of the Defendant and the malicious circumstances under which her and her representatives have acted”: Tcpt, 2 November 2022, p 18(42-45).

11. [39]

    Counsel for the Defendant submitted that the subpoenas sought by the Plaintiffs would not materially assist in identifying any issues identified in the proceedings, the principal issue relating to the preparation and execution of the Will propounded by the Plaintiffs, and whether it can be demonstrated that it is the Will of a free and capable testator: Tcpt, 2 November 2022, p 19(18-26).

12. [40]

    With respect to the third subpoena, counsel for the Defendant agreed that its relevance might be limited to the criminal record relating to the Defendant, but submitted that the onus in the proceedings rests with the Plaintiffs to prove the validity of the Will that is being propounded and that it was not in dispute that the Defendant had nothing to do with the preparation or execution of the deceased’s Will: Tcpt, 2 November 2022, p 20(1-26).

13. [41]

    It was submitted that “if the test for relevance and forensic purpose is a likelihood to materially assist on an identified issue which is the validity of the 2020 Will, my submission is that I don’t think criminal records, even narrowed in that way would assist the Court on that issue”: Tcpt, 2 November 2022, p 20(47)-21(2).

14. [42]

    Regarding the subpoenas generally, whilst it was not submitted, in my view, correctly, that they could not be issued because the pleadings had not closed, it was submitted that the documents appeared to be wholly irrelevant to the issues for determination between the parties and that they were not a bona fide attempt to obtain relevant evidence that could rationally bear on the questions for determination: Tcpt, 2 November 2022, p 21(25-32).

15. [43]

    With respect to Paragraph 3 of the notice of motion, which sought an order that Mr Shad to be referred to the Law Society of NSW for investigation of professional misconduct, it was submitted that there was no disclosed jurisdictional, or other, basis for that order. It was submitted that any such order would be an abuse of process, and in any event, was premature, since there has been no ultimate finding in relation to the issues in dispute. (I should mention, in relation to the third order sought, that the Plaintiffs accepted that the order could not be made at this time: Tcpt, 7 November 2022, p 22(13-29).)

The legal principles

1. [44]

   It seems clear that the only power available to the Court, at the behest of a party, to compel the production of documents held by a third party is by the issue of a subpoena duces tecum.

2. [45]

   UCPR r 33.2 provides that the court may, in any proceeding, by subpoena, order the addressee (a) to attend to give evidence as directed by the subpoena, or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or (c) to do both of those things.

3. [46]

   UCPR r 3.14(2) provides that a request to issue a subpoena using the online registry can only be made on behalf of a party who is represented by a solicitor.

4. [47]

   I have referred to UCPR r 7.3 earlier in these reasons.

5. [48]

   One of the purposes of UCPR r 7.3 is to protect against subpoenas being issued at the request of a litigant who may not understand the usual rules of practice and do not have ethical obligations of legal practitioners. UCPR r 7.3(2) provides that leave under sub-rule (1) may be given either generally or in relation to a particular subpoena or subpoenas. Thus, whether leave to issue a subpoena ought to be granted to self-represented litigants, is a matter of discretion.

6. [49]

   In Monteiro v State of New South Wales [2022] NSWSC 148, Campbell J wrote at [14]-[15]:

7. [50]

   (Although Secretary of the Department of Planning, Industry and Environment v Blacktown City Council was a case involving an application for leave to appeal from a decision in relation to the issue of a subpoena by Blacktown City Council to the Secretary of the Department of Planning, Industry and Environment in relation to proceedings in the Land and Environment Court, for production on the basis that it lacked any legitimate forensic purpose, the principles to be applied are not dissimilar.)

8. [51]

   In Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 at [5]-[6], Bellew J wrote:

9. [52]

   His Honour’s statements were cited, with approval in NHB Enterprises v Corry (No 4) [2020] NSWSC 426 at [11] (Williams J); Attorney General v Collier [2022] NSWSC 323 at [5]-[7] (Hamill J).

10. [53]

    It can be seen from the authorities, that the Plaintiffs, as the party seeking leave, bear the onus of demonstrating that the subpoenas, leave for the issue of which is sought, have a legitimate forensic purpose. That purpose, of course, includes that “the documents sought to be produced by way of subpoena will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist”. Leave should not be granted unless that purpose is established.

11. [54]

    In dealing with the Defendant’s submission on the question of “relevance”, I have remembered what Brereton J wrote in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 at [25]:

12. [55]

    In In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 at [22]-[24], Gleeson JA explained that “apparent relevance” means something could “reasonably be expected” to “throw light” on some of the issues in the proceedings. As Bell P wrote in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council at [57], so long as the subpoena can plausibly be seen to relate to an issue in the proceedings (or to “cast light” on such an issue), and the proposed subpoena is not, in other respects, too vague or oppressive, it should not be set aside. His Honour cited, with approval, at [25], the above passage in Portal Software International Pty Ltd v Bodsworth.

13. [56]

    It follows that determining whether there is a legitimate forensic purpose requires reference to the facts of the particular case, or the identified issues, upon which the documentation sought by the proposed subpoena is reasonably expected to throw light.

14. [57]

    I do not have to consider, on this application, whether the documents, the production of which is sought in the proposed subpoenas, will definitely advance the case of the Plaintiffs, or whether they will be admissible in evidence at the trial.

15. [58]

    In relation to the part of the third subpoena, which relates to criminal records, I have considered whether the documents could be relevant on the issue of the Defendant’s credit.

16. [59]

    The question whether a subpoena which seeks documents relating only to credit may be issued, was answered, affirmatively, by Brereton J in Liristis v Gadelrabb [2009] NSWSC 441. In that case the Defendant sought to issue a subpoena to produce to the Police Commissioner, requiring production of “complete copy of criminal records specifically those regarding any convictions for dishonesty and in particular perjury, and convictions under the Oaths Act 1900 NSW in relation to [the Plaintiff and his father]”. Importantly, there was evidence before the Court that the Plaintiff had been prosecuted on a charge of perjury and convicted in the District Court. He subsequently appealed to the Court of Criminal Appeal, where the conviction was quashed, and a new trial was ordered. The party’s credit was a real issue in the proceedings.

17. [60]

    His Honour stated (at [4]-[5]):

18. [61]

    Copies of the Plaintiff’s criminal records were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered.

19. [62]

    In Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303, the majority of the Court of Appeal (Basten and Emmett JJA, Adamson J dissenting) held that a subpoena may legitimately seek material relevant to the investigation of a reasonable suspicion about facts pleaded or particularised, including matters of credit, but that a subpoena will not serve a legitimate forensic purpose where it seeks material beyond what would reasonably be required to investigate the matters pleaded or particularised, or where it trawls speculatively for documents that may possibly impugn a witness’s credit. In those circumstances the subpoena would constitute a “fishing expedition”.

20. [63]

    In that case, the Court of Appeal allowed an appeal against the dismissal of an application to set aside subpoenas issued by an insurer. In the first instance, the primary judge allowed access to material which fell within the category of “all criminal records” but excised the remaining words “all complaints, reports and any documentation relation to any incidents involving [the named person]”, instead leaving it to the trial judge to determine that aspect of the subpoena.

21. [64]

    Basten JA held that there was no foreseeable case presented by counsel for the respondent in which the kind of material not forming part of a criminal record and not relating to the incident in issue, could be used. Regarding the reference to “all criminal records”, it would be necessary for there to be offences of dishonesty and that the request for “all criminal records” was not so limited. Yet, if it had been more limited, an objection might have been made on a different basis, namely that it would have required an independent third party to form a judgment as to what was, and what was not, covered by the subpoena.

22. [65]

    In Roberts-Smith v Fairfax Media Publications Pty Limited (No 16) [2021] FCA 584, Besanko J, at [31] wrote:

Determination

1. [66]

   Turning then to the question whether leave to issue the subpoenas should be granted, the Plaintiffs do not appear to understand that, in order to obtain a grant of probate in solemn form, they, as the propounders of the 2020 Will, must establish that the deceased had testamentary capacity at the relevant time to make a will, that she had the intention, by the handwritten instrument, to make a will, and that she knew and approved of the contents of the Will being propounded: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [301]; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21. They must establish that she had sufficient mental capacity to comprehend the nature of what she was doing, and its effects; that she was able to realize the extent and character of the property with which she was dealing, and to weigh the claims that naturally ought to press upon her. To rightly understand these various matters, it is essential that the deceased’s mind was free to act in a natural, regular, and ordinary manner.

2. [67]

   However, in relation to the allegation of undue influence, the onus is on the Defendant to establish influence which can justly be described by the court to have caused the execution of the 2020 Will pretending to express the deceased's mind, but which really does not express her mind, but something else which she did not really mean: Boyse v Rossborough (1857) 10 ER 1192 at 1205; Craig v Lamoureux [1920] AC 349 at 357. In this regard, “persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will". (See: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [311].) She must prove the allegation on the balance of probabilities.

3. [68]

   The allegation of undue influence is a serious one, and it is necessary to remember s 140 of the Evidence Act 1995 (NSW) which says that a Court may take account of the gravity of the matters alleged when deciding if a case has been proved.

4. [69]

   It has not been asserted by the Plaintiffs that the Defendant, or, as importantly, any of her legal representatives, had anything to do with the creation, or execution, of the 2020 Will.

5. [70]

   The focus of the documents sought in the subpoenas does not appear to relate, directly indirectly to any of the issues. The Plaintiffs have not identified, let alone established, that the documents in each of the proposed subpoenas will materially assist in the determination of an identified issue in the proceedings.

6. [71]

   It is clear that the pleadings have now closed and the issues in the case are able to be ascertained. As the Defendant, in the Cross Claim, does not seek a family provision order out of the estate, or notional estate, of the deceased, the matters in s 60(2) of the Succession Act 2006 (NSW), to which the Court may have regard for the purpose of determining whether to make a family provision order and the nature of any such order, are not relevant. Importantly, the character and conduct of the Defendant, before and after the date of the death of the deceased person (s 60(2)(m)), is not a matter to which the Court may have regard.

7. [72]

   In dealing with the notice of motion, I have remembered that, in assessing whether a legitimate forensic purpose exists, the necessity for having a document to fairly dispose of the issues at the hearing might not become apparent before the trial. I have also remembered that, in the interests of a fair trial, litigation should be conducted on the basis that all relevant documentary evidence is available. However, in this case, I do not consider that the documents sought to be produced have even an apparent connection to justify their production or inspection.

8. [73]

   As stated, it is the testamentary capacity of the deceased and her knowledge and approval, taken with the conduct of one, or both, of the Plaintiffs, going to undue influence, that are the subject of the amended Defence to the Statement of Claim. In that regard, however, as stated, there is no suggestion that the Defendant and her legal advisers had anything to do with the creation of the 2020 Will, and there is no dispute that if the validity of that Will is not established by the Plaintiffs, the deceased died intestate. I am unable to discern any connection between any alleged conflict of interest that would be relevant to the issues to be determined.

9. [74]

   There is also nothing that identifies how, in circumstances where the Defendant is seeking to impugn the conduct of one, or both, of the Plaintiffs, in relation to the creation of the 2020 Will, in the assertion of undue influence, the Defendant’s criminal record, is likely to be relevant. Any question of the Defendant’s credit is so tenuous that it would not justify investigation at the trial.

10. [75]

    Whilst the documents the subject of each proposed subpoena might be of interest to them, the Plaintiffs have not demonstrated how any of the documents could give rise to a line of enquiry relevant to the issues, including for the purpose of meeting the Defendant’s case, by dint of cross-examination.

11. [76]

    In the circumstances, the Plaintiffs have not established that leave to issue the subpoenas should be granted. There is nothing that identifies, or explains, the relevance of any of the material sought to be produced on the issues that are required to be determined in the substantive proceedings.

12. [77]

    I am also of the view that granting leave to the Plaintiffs to issue the subpoenas would be inconsistent with the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The focus of the Plaintiffs should be on what they need to establish to successfully propound the 2020 Will and to defend the allegation of undue influence. The validity, or otherwise, of the 2020 Will cannot be determined by the conduct of the Defendant, or the conduct of her solicitors, in relation to the proceedings commenced after the death of the deceased.

13. [78]

    In the circumstances, and in the exercise of my discretion, the Court orders that the Plaintiffs’ notice of motion filed on 20 October 2022 be dismissed with costs. The matter will be referred to the Equity Registrar on 28 November 2022 for the purpose of obtaining a hearing date with an estimated duration of 5 days. The directions hearing listed on 5 December 2022 is vacated.

14. [79]

    By way of postscript, I reiterate my concern that the Plaintiffs, in ignorance of the legal, and other, problems that could arise, will continue without retaining legal practitioners to appear for them in what are complex Probate proceedings in which serious allegations are made. They have been afforded sufficient opportunity to do so and should be aware, in the event they do not retain legal assistance until a time closer to the date the matter is listed to be heard, that any hearing will not be delayed for that reason.